Chile’s quest to introduce a Constitution elaborated under democratic conditions

President Bachelet’s recent announcement about drafting a new constitution for Chile came as a surprise to many. Chile is widely regarded as one of Latin America’s most stable democracies and, in fact, as one of the most successful cases of the so-called ‘third wave of democratization’. Thus, it may come as a surprise that, in recent years, there has been a growing demand to introduce a new constitution. Indeed, ever since 2009 – when three out of four candidates for the presidency included the adoption of a new fundamental charter in their political programs, the legitimacy of the existing constitution has been the subject of national controversy.

The timing of the sudden irruption of Chile’s ‘constitutional question’ was peculiar, since it happened two decades after the end of the military regime led by General Augusto Pinochet, which in 1980 had imposed a constitution through a fraudulent referendum. While the ‘pacted’ nature of the transition from authoritarian rule to democracy made the immediate adoption of a new charter impossible, the many amendments that were introduced to the constitution in the following years (which eliminated the most patently undemocratic features of it, such as the non-elected senators and the lack of civilian control over the armed forces), persuaded most politicians and observers that Chile’s constitutional problem had been solved. But they were proved to be wrong, when in 2011 hundreds of thousands of students demonstrated in the streets of Santiago demanding a new constitution as a pre-condition for dismantling key features of the neoliberal economic model imposed by the dictatorship. In the wake of this social movement, Michelle Bachelet made the introduction of a new fundamental law elaborated under democratic conditions one of the pillars of her electoral platform, in her quest to be elected for a second term, after her presidency from 2006 to 2010.

During most of the last two decades, Chile was something of a poster-child of what a successful ‘transition to democracy’ looked like. This was due to the high degree of political stability, presence of a solid rule of law, and impressive economic progress experienced by the country in the period 1990-2015. However, the expression ‘transition to democracy’ is misleading when applied to the Chilean case. After the demise of General Pinochet’s regime, the country recovered its democratic past, as opposed to starting one there where none existed. This is contrary to what happened in many, if not most, of the countries of the last wave of democratization. Indeed, in its recovery from an authoritarian interruption of its democratic trajectory, Chile could rely on its institutional, cultural and political infrastructures – elements that contributed to the democratization process. Conversely, countries that lacked a significant democratic past faced the often insurmountable challenge of inaugurating a constitutional democracy from scratch.

Where does the demand for a new Constitution come from?

The current constituent process represents an interesting case in the domain of comparative constitution building, since it is happening in a country that has not experienced any significant social, political or economic crisis in almost a generation. This constitutes an anomaly in the Latin American context, since the archetypical ‘constitutional moments’ of the region have happened either at the beginning of a democratic transition or in times of severe crisis.

According to those who support the calls for a new constitution, the current one has two fundamental problems. First, it was imposed by a violent dictatorship, something that prevents it from gaining a minimum legitimacy in the eyes of the majority of the population. Secondly, it still includes clauses explicitly designed by general Pinochet’s constitutional advisers to prevent the dismantling of the core pillars of the neoliberal model imposed by the military regime. This goal was explicitly recognized by Pinochet’s main legal adviser, Jaime Guzmán:

“Even if our opponents manage to gain access to power, they should be (constitutionally) constrained to follow not so different a path than the one we ourselves would like to follow (…), because the margin of manoeuver allowed to them by the rules of the game would so much reduce the alternative courses of actions available as to make it extremely difficult to behave otherwise”.

Jaime Guzmán was very open when articulating that the ‘point’ of the constitution of 1980 was to make future democratic elections meaningless in terms of their impact on public policy, as the fundamental law would constrain even a majority. The main features of the 1980 charter pursuing this goal had gradually been removed over the past two decades. However, there are still a couple of elements that manage to block a majority from attempting to change the social and economic model left by the dictatorship. A case in point is the requirement to gather 4/7 of the members of both chambers of Congress in order to abrogate or modify a so-called ‘organic legislation’, which regulates policies such as education or the regulation of the armed forces. The same applies to the so-called ‘preventive’ control of the constitutionality of law projects by Chile’s Constitutional Court, a mechanism that has regularly been used by the political heirs of the authoritarian regime as a means to block the promulgation of legislation adopted by the majority in Congress.

The growing illegitimacy of a constitution, with clauses that prevent the expression of democratic will from changing key aspects of public policy, have rendered the 1980 charter untenable for a large segment of the population.

Challenges of the Constitutional Project underway

Given Chile’s legal and political culture, it would simply be unthinkable for Bachelet’s administration to somehow disregard the quorum required by the existing constitution to reform the chapter regulating constitutional change, which is 2/3 of the members of both houses of Congress. Combined with the fact that in Chile the right has never received less than 35-40 per cent of the vote means that in order to introduce a new constitution, the Government will need to convince at least a portion of right-wing parliamentarians.

The main obstacle to persuade them is the bad press that the region’s most recent constitution-making processes have had in Chile. Indeed, the constitutional assemblies that were conducted in Venezuela (1999), Ecuador (2008) and Bolivia (2009), are regarded by most Chilean political actors as unmitigated failures, since they are thought to have caused the radicalization and political turmoil exhibited by some of those countries.

Due to the above, President Bachelet has insisted that the process leading to a new constitution would be ‘democratic, participative and institutional’. With the last expression (‘institutional’) she signals that she would be scrupulously respectful of the high quorums required to start the formal phase of constitutional change (after the participatory stage). While many jurists are skeptical that the right-wing opposition will ever lend its support to a new constitution, the hope within government circles is that the participatory stages that are about to start in the next couple of months would generate a momentum that will create the political conditions and finally open the doors for a constitution elaborated under democratic conditions.

The phases of Chile’s ‘constituent process’

In a formal speech issued on October 13, 2015, President Bachelet outlined the main steps set to introduce a new constitution. First, there shall be a stage of “civic and constitutional information-sharing”, so that all citizens are provided with the necessary tools to get actively involved in the next phase of the process. This first stage will start as early as December 2015 and it will last until April 2016. The so-called ‘constitutional dialogues’ will follow this, where everyone will be invited to participate in debates on the new constitution. The idea is to have an orderly process organized at the local, provincial, and regional levels, ending with a synthesis at the national level. The expected result of these constitutional dialogues will be the so-called "Citizen Bases for the New Constitution," expected to be ready towards the end of 2016. In order to ensure that both the ‘civic and constitutional information-sharing’ and the  ‘constitutional dialogues’ stages are free and non-partisan, next month the Government will appoint a politically diverse ‘Citizens Council of Observers’, charged with the task of monitoring the above-mentioned processes, providing guarantees of transparency and fairness.

After the participatory phases of the constituent process conclude, President Bachelet will elaborate the draft of a new constitution, drawing on both the ‘Citizen Bases’ document and on Chilean constitutional tradition. Early in the second half of 2017, the Government will present to the Congress the project of a new constitution.

In late 2016, the President will also send to Congress a bill reforming the current constitution so that it will enable the next Congress to choose between four ways to adopt the new constitution. The first alternative is to form a bicameral commission of senators and deputies that will draft a new charter. The second is to form a joint Constitutional Convention of parliamentarians and citizens, which will elaborate a new constitution. The third is to set up a Constituent Assembly to draft the new fundamental law.  And the fourth alternative will be to call a plebiscite so that the citizenry itself can decide between the three mentioned alternatives.

The rationale of leaving the decision of the mechanism for adopting a new constitution to the next Congress is that the bulk of the parliamentarians elected in 2017 will have been elected under the new electoral system (already adopted in January 2015), as well as on the basis of a new law on political parties and campaign financing. Thus, the Congress of 2017 will enjoy greater legitimacy, representativeness and transparency. The decision on the mechanism for adopting Chile’s new constitution will be taken by a three-fifths majority.

The constituent process will finish with a binding referendum to be held in 2019 for the ratification of the new constitution by the citizens.

Javier Couso Salas  is a Chilean lawyer, professor at and director of the Constitutional Law Program of Universidad Diego Portales in Santiago (Chile) and professor of the Prince Claus Chair in Development and Equity at Utrecht University.